Monthly Archives: September 2012

The great debate continues: is it an infringement of copyright to link to third party content? And does it matter whether that content is itself infringing or not, or whether the person providing the link is making a profit from their website? A quick recap on what the courts have found recently: in the US it is ok to link to infringing content, but it might not be in the UK, and in Canada it is ok to link to non-infringing content.

Last week the Dutch Courts gave their view on the issue: in the Netherlands can be an infringement of copyright to provide a link to an infringing photograph.

The Court held that while linking to a photo does not infringe in itself infringe copyright in that photo, there are a number of factors which must be taken into account and which may cause copyright infringement. In this instance it was relevant that the public was not aware of the existence of the leaked photos before GeenStijl published the link, and that the public would not have had access to the photos had GeenStijl not published the link.

The Dutch Court also took into consideration the fact that GeenStijl is an ad-supported website, which would profit from posting the link, as it would attract more visitors to its site.

These two factors served to make the link infringing.

So let’s say you have a search engine. Is it possible to write code to prevent infringement by this definition?

Maybe you can check that some image is new to the public, if it’s out there but nobody is linking to it or copying it. But how can you distinguish things that people won’t care about ever from things that people don’t care about yet?

You’re ad-supported. You profit from posting the link. So there’s no way for a search engine to escape that test.

In a case like this I think that what happens is a “jerk” test: the case law is only intended to apply to jerks. Nice-guy companies will be excluded. That’s what has happened with file hosting services. Compare Megaupload to Dropbox. Megaupload came across as sleazy and exploitive, Dropbox comes across as upstanding and decent. The law is the same, their actions are nearly the same, the outcome is totally different.

Granted, the idea of the rule of law is that the law is intended to be the same for everybody.

Copyright owners in the creative sector are very vocal in demanding payment for their rights – and removal of material that isn’t licensed – both of which they are of course entitled to do. However, it can easily be argued that we couldn’t make it more difficult for legal services to pay for rights in the current copyright system if we tried.

Many have asked the reasonable question “How is anyone to tell what is licensed and what is not?” However there is another, equally fundamental question: “Can the assertion of anyone that they have any legal right to the content they claim be independently verified?”

The answer to that question, believe it or not, is no.

The solution they call for is a centralized registry. That seems like more burden than necessary. I’d propose instead that every DMCA takedown request should be made available to the public with something like Chilling Effects, so that rival claimants to the rights can find out about one another.

At Yahoo I worked for Ian Rogers. A valuable thing I learned from him is that informed optimism is empowerment.

If you feel despair, you’ll give up. If you feel confident that a solution exists, you’ll keep working until you find it. Optimism is the difference. If you can find optimism in a difficult situation, you have a chance of finding a path.

Sometimes things are really hopeless and you can’t find optimism. If you can’t find optimism it’s time to leave.

Yahoo was a sinking ship. Every day there was more bad news. While I was struggling to keep Webjay alive inside of Yahoo I had few reasons for hope, and it was often hard to find optimism. The next generation product vision for Webjay was the nugget that eventually grew into Yahoo Web Player. That next generation vision had great support and ultimately consensus. So I was able to find optimism by choosing to let the old vision die in order to turn the new vision into a reality. Webjay couldn’t have lasted, because it was a silo. Yahoo Web Player had real durability because it looked outward onto the whole web. Getting Yahoo Web Player built was a bigger and better mission. My optimism wasn’t just the best I could come away with, it was for a genuine advancement.

I am applying this method to my work related to the DMCA. Where many people on the left wing of digital politics feel things are hopeless, I feel things are just not easy. When I posted that copyright is not broken, it was because I have been able to find optimism.

Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.

Every week copyright holders send out millions of takedown notices to websites all across the Internet. While the majority of these claims are legitimate, a healthy percentage are not. These “errors” can cause serious harm to the public, but the senders are never held responsible for their mistakes. Perhaps it’s time to punish repeat senders of bogus takedown notices?

One of the problems is that many rightsholders use completely automated systems to inform Google and other sites of infringements. They swear under penalty of perjury that their notices are correct, but this is often an outright lie.

Since most websites simply don’t have the resources to check the validity of these bogus notices, content is then censored in error.

My dream solution is to reduce liability of web sites with regard to notices from copyright holders that have a record of bogus notices. Let sites move notices from these companies to the bottom of the pile to be processed last. Reduce maximum lawsuit awards by a fixed percentage each time a bogus notice is received.

I’ve spent many hours listening to YouTube, not watching. There appears to be a sweet spot for long-lived (large catalog) bands that are unpopular enough to have never been on a major label or imitator (nothing gets taken down nor monetized) but popular enough that lots of their catalog is uploaded. The main problem with YT for me is that nobody has gotten around to uploading much or even anything from many great but too unpopular bands.

The Ex is an example of a band in that sweet spot that I’ve been listening to a lot recently.

There’s a dynamic similar to orphan works. For huge acts like The Beatles it’s well worth the time for somebody to issue takedowns. But for smaller acts like John Fahey or Bill Monroe it’s less likely that somebody will take the trouble.

Also, live performances of public domain compositions by acts on the level of Fahey or Monroe are out of reach of takedown requests. These recordings are spotty, but some are good enough.

In January this year Megaupload was taken down by U.S. authorities. In the space of a few hours the entire site was completely wiped out and the news made dozens of headlines that continue to break to this day.

But while seemingly everyone knows that Megaupload no longer exists, the likes of IFPI, BPI, Sony, Warner, Universal, EMI, The Publisher’s Association, Microsoft, and adult company Vivid (to name a few) are absolutely oblivious. To this very day these companies are sending takedown demands to Google ordering the company to remove links to content on Megaupload.com that hasn’t existed, at the least, for almost nine months.

What this shows is that anti-piracy companies aren’t even bothering to check content anymore – they’re simply searching Google, firing off notices without a second thought, and then expecting the search giant to clean up the mess.

I wonder what practical steps could be taken to fix this problem.

If Google could penalize companies posting takedown requests for bogus requests, the complainers would take more care with accuracy. But Google can’t do that as far as I know. Google has just as much liability for a copyright infringement notification comes from somebody with a spotty record.

If Google could cap requests from an entity, the entity would have an incentive to spend their quota wisely. But it can’t.

What’s to stop a company from sending takedown requests for every URL on the web and letting Google figure out the difference?